State v. Montana , 179 Conn. App. 261 ( 2018 )

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STATE OF CONNECTICUT v. TRAVIS MONTANA
(AC 39720)
Alvord, Prescott and Lavery, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree and risk of
injury to a child, the defendant appealed. Held:
1. The state presented sufficient evidence to support the defendant’s convic-
tion of sexual assault in the first degree and risk of injury to a child;
the victim provided graphic testimony of the sexual assaults, which
the jury was free to believe even if there were inconsistencies in that
testimony, the jury reasonably could have found the defendant guilty
of sexual assault on the basis of that testimony alone, which established
the elements necessary to support the defendant’s conviction of sexual
assault in the first degree and risk of injury to a child, and it was not
for this court to assess the credibility of the victim’s testimony.
2. The trial court did not abuse its discretion in refusing to admit certain
third-party culpability evidence proffered by the defendant, which con-
cerned the victim’s father: the nonhearsay evidence did not directly
connect the victim’s father to the alleged acts of sexual abuse with
which the defendant was charged, as the evidence, if believed, merely
established that the victim’s father may have committed some other
crime during a later time frame, and the fact that the victim’s father
might have had a motive and an opportunity to sexually assault the
victim also did not establish a direct connection between the victim’s
father and the crimes at issue.
Argued October 25, 2017—officially released January 16, 2018
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree and risk
of injury to a child, brought to the Superior Court in the
judicial district of Fairfield, geographical area number
two, and tried to the jury before Kavanewsky, J.; there-
after, the court denied the defendant’s motion to intro-
duce certain evidence and granted the state’s motion
to preclude certain evidence; verdict and judgment of
guilty, from which the defendant appealed. Affirmed.
Jodi Zils Gagne, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Ann P. Lawlor, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Travis Montana, appeals
from the judgment of conviction rendered after a jury
trial, of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2) and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2).1 On appeal, the defendant claims that (1) the evi-
dence was insufficient to support his conviction and
(2) the court abused its discretion in excluding third-
party culpability evidence. We affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts. In 2012, the victim, J,2 was living with her three
biological siblings and her adoptive father in a small
room at a motel in Bridgeport (motel). The room had
two beds and two air mattresses. In January, 2012, when
the victim was twelve years old, the defendant, who
was a friend of the family, moved into the room at the
motel with the victim and her family. At some point,
the defendant began sharing a bed with the victim.
One night while the victim was sleeping, the defen-
dant cut a hole in the victim’s pajama pants and digitally
penetrated the victim’s vagina. On one other occasion,
the defendant attempted to force the victim to perform
fellatio. On additional occasions, the defendant forced
the victim to engage in vaginal intercourse. The victim’s
father, who was ill and on medication, was ‘‘dead
asleep’’ during the abuse. The last incident occurred on
February 14, 2012. Shortly thereafter, the defendant
moved out of the motel. After the defendant left the
motel, the victim disclosed the abuse to her older sister
and her father. The victim’s father informed the victim’s
physician of the abuse during a physical examination.
The physician contacted the Department of Children
and Families (department), and the case was referred
to the Bridgeport Police Department.
Following a jury trial, the jury returned a verdict
finding the defendant guilty of sexual assault in the first
degree and risk of injury to a child. The trial court
rendered a judgment of conviction in accordance with
the jury’s verdict and sentenced the defendant to a
total effective sentence of fifteen years incarceration,
followed by ten years special parole. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant first claims that the state presented
insufficient evidence at trial to support his conviction
of sexual assault in the first degree and risk of injury
to a child. Specifically, the defendant asserts that the
state’s evidence was insufficient because of inconsis-
tencies in the victim’s testimony.3 We disagree.
The standard of review that we apply to a claim of
insufficient evidence is well established. ‘‘First, we con-
strue the evidence in the light most favorable to sus-
taining the verdict. Second, we determine whether upon
the facts so construed and the inferences reasonably
drawn therefrom the [trier of fact] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt.
. . . On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [trier’s] verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Tine, 137 Conn. App. 483, 487–88, 48
A.3d 722, cert. denied, 307 Conn. 919, 54 A.3d 562 (2012).
The defendant asserts that the state failed to establish
his guilt beyond a reasonable doubt because ‘‘[t]here
were simply too many inconsistencies’’ in the victim’s
testimony and because it was ‘‘not logical to believe
that [the defendant] engaged in these acts and no one
heard or saw anything at the time.’’4 The defendant,
essentially, is asking this court to assess the credibility
of the victim’s testimony and conclude that the state
lacked sufficient evidence as a result of the victim’s
lack of credibility. This we may not do. ‘‘As a reviewing
court, we may not retry the case or pass on the credibil-
ity of witnesses. . . . [W]e must defer to the [finder]
of fact’s assessment of the credibility of the witnesses
that is made on the basis of its firsthand observation of
their conduct, demeanor, and attitude. . . . Credibility
determinations are the exclusive province of the . . .
fact finder, which we refuse to disturb. . . . It is well
settled . . . that [e]vidence is not insufficient . . .
because it is conflicting or inconsistent. . . . Rather,
the [finder of fact] [weighs] the conflicting evidence
and . . . can decide what—all, none, or some—of a
witness’ testimony to accept or reject.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Douglas
F., 145 Conn. App. 238, 243–44, 73 A.3d 915, cert. denied,
310 Conn. 955, 81 A.3d 1181 (2013).
We conclude that the evidence at trial was sufficient
to convict the defendant because the testimony of the
victim established the elements necessary to support
the defendant’s conviction of sexual assault in the first
degree and risk of injury to a child. The victim provided
ample graphic testimony of the sexual assaults and it
serves no useful purpose to recite her testimony in
detail. See State v. Gene C., 140 Conn. App. 241, 246,
57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120(2013). ‘‘The jury, as sole arbiter of credibility, was free
to believe that testimony.’’ Id. ‘‘[A] jury reasonably can
find a defendant guilty of sexual assault on the basis
of the victim’s testimony alone.’’ Id., 247.
II
The defendant also claims that the court abused its
discretion in denying his motion in limine to present
third-party culpability evidence. We disagree.
The following additional facts are relevant. On Sep-
tember 14, 2015, the day before the trial began, defense
counsel filed a motion in limine requesting a ruling
on the admissibility of evidence regarding whether the
victim’s father touched her in a sexually inappropriate
manner and whether the victim’s father sent her sexu-
ally explicit text messages. The following day, the court
permitted defense counsel to make an offer of proof
outside the presence of the jury.
During the offer of proof, the victim testified to the
following. Her father ‘‘touched’’ her in 2015, but he did
not touch her in a sexually inappropriate manner before
2015, or while they were living at the motel. The victim’s
father sent her sexually explicit text messages in 2015,
but he did not send her sexually explicit text messages
when she was living at the motel. When the victim told
her father and sister that the defendant had abused her,
her sister had a ‘‘mental relapse’’ due in part to being
sexually abused by their father. She told the victim to
be careful of their father. In 2008, the victim’s father
told the family that he was pursuing a relationship with
the victim’s sister, but the victim did not know whether
the relationship was sexual in nature. The victim did
not have personal knowledge of either the relationship
between her father and sister, or of her father sexually
abusing her sister. The state objected to the admission
of the proffered evidence.
The court denied the defendant’s motion in limine
and sustained the state’s objection to the proffered evi-
dence. The court determined that the victim’s testimony
regarding statements made by her father and sister were
inadmissible hearsay. The court also concluded that
there was no basis for connecting the victim’s nonhear-
say statements that her father touched her and sent her
sexually explicit text messages in 2015, to the early
2012 incidents at the motel, and, thus, that the state-
ments were not relevant. The court noted that the victim
testified in the jury’s presence that her father was taking
medication and was, therefore, unaware of the sexual
abuse at the motel. The court further determined that
the evidence was more prejudicial than probative.
On appeal, the defendant argues that the proffered
evidence supported his third-party culpability defense
because the victim’s father had a motive and the oppor-
tunity to commit the crimes.5 He argues that because
the victim’s father inappropriately touched the victim
in 2015, and had a relationship with the victim’s older
sister, ‘‘it would not be a stretch of the imagination to
believe [that the victim’s father] committed these acts
at an earlier time as well . . . .’’ We do not agree.
‘‘It is well established that a defendant has a right to
introduce evidence that another person committed the
offense with which the defendant is charged. . . . The
defendant must, however, present evidence that
directly connects the third party to the crime. . . It is
not enough . . . to show that another had the motive
to commit the crime . . . nor is it enough to raise a
bare suspicion that some other person may have com-
mitted the crime of which the defendant is accused.
. . .
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevancy is an evidentiary question, and [e]videntiary
rulings will be overturned on appeal only where there
was an abuse of discretion and a showing by the defen-
dant of substantial prejudice or injustice. . . . In
determining relevancy, [t]he court must determine
whether the proffered evidence is corroborative or coin-
cidental, whether it is probative or tends to obfuscate,
and whether it clarifies or obscures. In arriving at its
conclusion, the trial court is in the best position to view
the evidence in the context of the entire case, and we
will not intervene unless there is a clear abuse of the
court’s discretion.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Baker, 50 Conn. App. 268,
277–78, 718 A.2d 450, cert. denied, 247 Conn. 937, 722
A.2d 1216 (1998).
We conclude that the court did not abuse its discre-
tion in refusing to admit the defendant’s proffered third-
party culpability evidence. The defendant failed to offer
any evidence that directly connected the victim’s father
to the acts of sexual abuse that occurred at the motel.
The nonhearsay evidence the defendant sought to intro-
duce,6 if believed, merely established that the victim’s
father engaged in factually dissimilar acts of miscon-
duct against the victim three years after the incidents
at the motel.7 The victim testified during the offer of
proof that her father did not send her sexually explicit
text messages or touch her in a sexually inappropriate
manner while they resided at the motel during the rele-
vant time frame.8 The victim also knew the defendant
and clearly identified him as her assailant during her
testimony on direct examination. She also testified on
direct examination that her father was medicated while
the abuse was occurring at the motel.
The proffered evidence creates a merely tenuous and
speculative connection between the victim’s father and
the crimes at issue. It indicates that the victim’s father
may have committed some other crime during a later
time frame, but does not establish a direct connection
between the victim’s father and the sexual abuse at the
motel. The fact that the victim’s father might have had
a motive and an opportunity to sexually assault the
victim at the motel does not establish a direct connec-
tion between the victim’s father and the crimes at issue.
‘‘It is not enough to show that another had the motive
to commit the crime . . . nor is it enough to raise a
bare suspicion that some other person may have com-
mitted the crime of which the defendant is accused.
. . . Evidence that would raise only a bare suspicion
that a third party, rather than the defendant, committed
the charged offense would not be relevant to the jury’s
determination.’’ (Citations omitted; internal quotation
marks omitted.) State v. Arroyo, 284 Conn. 597, 609–10,
935 A.2d 975 (2007). Accordingly, we conclude that the
court did not abuse its discretion by precluding the
defendant from introducing third-party culpability
evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-70 (a) (2) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’ General Statutes § 53-21 (a) (2) provides in relevant part:
‘‘Any person who . . . has contact with the intimate parts, as defined in
section 53a-65, of a child under the age of sixteen years or subjects a child
under sixteen years of age to contact with the intimate parts of such person,
in a sexual and indecent manner likely to impair the health or morals of
such child . . . shall be guilty of . . . a class B felony . . . .’’
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
3
The defendant also argues that the victim’s father ‘‘had a propensity
for committing this crime against his daughters’’ and the evidence was
insufficient to convict the defendant because the jury was precluded from
hearing third-party culpability evidence. The court ruled that the third-party
culpability evidence proffered by the defendant was inadmissible. See part
II of this opinion. We examine the defendant’s sufficiency claim on the basis
of the evidence admitted at trial and, accordingly, the court’s evidentiary
ruling excluding third-party culpability evidence has no bearing on our
review of the sufficiency of the evidence. Our ‘‘sufficiency review does not
require initial consideration of the merits of [the defendant’s evidentiary
claims] . . . . Claims of evidentiary insufficiency in criminal cases are
always addressed independently of claims of evidentiary error.’’ (Internal
quotation marks omitted.) State v. Coyne, 118 Conn. App. 818, 826, 985 A.2d
1091 (2010).
4
The defendant directs our attention to the following minor inconsisten-
cies: the victim told an interviewer that she was wearing shorts during the
initial sexual assault but stated at trial she had been wearing pajama pants;
the victim did not mention that the defendant cut her pants with scissors
during the initial sexual assault until trial; the victim stated to an interviewer
that her father did not wake during the sexual assaults because he was on
pain medication following surgery, but at trial the victim stated that her
father had surgery after the sexual assaults had occurred and offered a
different reason for her father having remained asleep. The defendant also
argues it is illogical that: (1) the victim did not mention the sexual assaults
to an employee of the department when the department became involved
with her family for other reasons; and (2) the defendant committed the
crimes due to the short period of time in which he resided at the motel.
5
The defendant also argues that the court erred by failing to instruct the
jury in accordance with his requested third-party culpability charge. ‘‘[A]
trial court should instruct the jury in accordance with a party’s request to
charge [only] if the proposed instructions are reasonably supported by the
evidence. . . . [T]he very standards governing the admissibility of third
party culpability evidence also should serve as the standards governing a
trial court’s decision of whether to submit a requested third party culpability
charge to the jury." (Citation omitted; internal quotation marks omitted.)
State v. Baltas, 311 Conn. 786, 810, 91 A.3d 384 (2014). We conclude that
the court did not err in declining to give a third-party culpability charge
because no third-party culpability evidence was admitted at trial to support
the charge.
6
The defendant does not challenge the court’s ruling that the statements
by the victim’s father and sister were inadmissible hearsay.
7
"[T]he right of an accused to offer evidence of a person’s character, past
criminal convictions or other prior bad acts, in support of a third party
culpability defense, also is compelled by the right to present a defense
guaranteed by the sixth amendment, and, as a general matter, its use should
be limited only by the rules relating to relevancy and balancing. . . . [T]he
policies underlying ’’§ 4-4 (a) [character evidence] and 4-5 (a) [prior miscon-
duct evidence] of the Connecticut Code of Evidence have extremely limited
applicability when the defendant offers evidence of a character trait or other
crimes, wrongs or acts to prove that someone else committed the crime
charged.’’ State v. Hedge, 297 Conn. 621, 653, 1 A.3d 1051 (2010).
8
The defendant further argues, for the first time on appeal, that (1) the
victim could have named the defendant as the perpetrator ‘‘simply to cover
up for her father’s actions’’ and that the jury should determine whether the
victim was being truthful when she stated during her proffered testimony
that her father had not touched her while they were residing at the motel;
and (2) he was prejudiced by the court’s exclusion of the evidence because
the jury ‘‘had no one else to choose for this crime.’’ We reject the defendant’s
arguments. As we previously concluded, the court did not abuse its discretion
in refusing to admit the proffered evidence.